UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1960.CDC.74

June 2, 1960.

PER CURIAM: The appeal is from an order of the District Court of May 4, 1960, in terms removing Lawrence T. Smith, as of March 30, 1960, as a Monitor. On May 12, 1960, we stayed the order pending disposition of this appeal or our further order.

Lawrence T. Smith is a Monitor who was appointed by the District Court on nomination of plaintiffs as provided in the Consent Decree entered January 31, 1958, approved as modified in the parent action of English v. Cunningham, 106 U.S. App. D.C. 70, 269 F.2d 517, cert. denied, 361 U.S. 897, 905. Under date of March 28, 1960, one of the attorneys for some of the plaintiffs, Godfrey P. Schmidt, Esq., sent to the Judge of the District Court before whom the matter was pending a letter giving in detail reasons why he thought Lawrence T. Smith should be removed as Monitor unless he resigned. No copy of this letter was sent to or furnished to Mr. Smith or to the parties to the case or to their counsel. On March 29, 1960, the court in a personal interview with Mr. Smith in the court's chambers requested his resignation, which was not tendered. On March 30, 1960, the court sent a letter to Monitor Smith advising him he was removed as Monitor. We dismissed an appeal sought to be taken from the removal in this form, indicating that the letter was not an appealable order. There followed the removal order of the District Court of May 4, 1960, now before us.

In paragraph two of the Consent Decree, it is provided that ". . . the Monitors are at all times subject to removal by this Court in the exercise of its discretion for any cause . . . ." This means, we think, that prior to removal the District Court should enter an order directing the Monitor to show cause why he should not be removed for the reasons suggested therein; that if a return thereto is filed a hearing should be had, after which the District Court should enter an order removing, or refusing to remove, the Monitor. If removal were ordered, the Monitor then could appeal to this court to determine whether the District Court had abused its discretion.

This procedure was not followed here. To the contrary, it appears Smith's removal was based, in substantial degree at least, upon ex parte representations made to the District Court by Mr. Schmidt, of which neither Monitor Smith nor the parties nor other counsel of record were aware. For these reasons only, the order of removal is set aside.

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